Details: United States v. Kebodeaux

Posted Mon, June 24th, 2013 11:18 am by Mike Gottlieb

United States v. Kebodeaux is a case about the Sex Offender Registration and Notification Act (SORNA), which requires federal sex offenders to register in the States in which they live. The question was whether Congress had the power to enact SORNA’s registration requirements and apply them to an offender who had already completed his sentence.

Kebodeaux was a member of the United States Air Force. He was convicted in 1999 by a special-court martial of a sex offense and sentenced to three months’ imprisonment and a bad conduct discharge. Several years after he served his sentence, Congress enacted SORNA. Kebodeaux registered with authorities in 2004 but years later failed to update his registration as SORNA required. The federal government prosecuted Kebodeaux for his failure to register under the Act, and a district court convicted him of violating the Act.

The Fifth Circuit reversed Kebodeaux’s conviction, holding that because he had fully served his sex offense at the time SORNA was enacted, he was no longer in any special relationship with the government that would justify the application of SORNA’s legal requirements. Because Kebodeaux had been unconditionally let free, the Fifth Circuit held, the federal government had no power to regulate his intrastate movements. The government petitioned for certiorari.

The Court reversed the Fifth Circuit. Justice Breyer wrote for the Court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. The Court’s opinion turns on the fact that even after his release from custody, Kebodeaux was still subject to sex offender registration requirements under the federal Wetterling Act. Consequently, SORNA merely modified registration requirements that applied to him. Under Article I, Section 8, Clause 14 (the “Military Regulation” Clause), Congress has the power to “make Rules for the … Regulation of the land and naval Forces.” Applying the Necessary and Proper Clause to the Military Regulation Clause, the Court held that SORNA made reasonable changes to the existing statutory regime governing sex offender registration.

The Chief Justice concurred in the judgment, emphasizing that the Court’s holding is not based on any recognition of a “federal police power,” but is instead based on Congress’s power to make rules for the regulation of the Armed Forces. Justice Alito wrote a similar concurrence. Justice Scalia and Justice Thomas each wrote separate dissents. Justice Scalia would have found that SORNA was not designed to carry the Wetterling Act into execution, and questioned whether the Wetterling Act’s registration requirement was itself a valid exercise of federal power. Justice Thomas would have held that SORNA “usurps the general police power vested in the States” and is therefore unconstitutional as-applied to Kebodeaux.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

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